AutoCoded Document




CONFIDENTIAL
TREATMENT REQUESTED



Confidential
portions of this document have been redacted and have been separately filed with
the Commission.















EQUIPMENT
SUPPLIER APPROVAL AGREEMENT



     AGREEMENT
made this 5th day of March, 2004 between Doctor’s Associates
Inc., (“DAI”), a Florida corporation having an address at 325 Bic
Drive, Milford, CT 06460, Independent Purchasing Cooperative, Inc.
(“IPC”), a Delaware corporation, with offices at 9200 South Dadeland
Boulevard #705, Miami, Florida 33156, and Turbochef Technologies, Inc.,
(“Supplier”), a Delaware corporation having an address at 10500 Metric
Drive, Suite 128, Dallas, Texas 75243.



     WHEREAS,
DAI is the owner of certain service marks and trademarks used in connection with
the establishment of SUBWAY® restaurants in the United States
using the distinctive system owned by DAI and through licensing arrangements
licenses those rights to affiliates and other franchisors for international
markets while acting as the service agent for those markets; and



     WHEREAS,
IPC is a SUBWAY® franchisee-owned purchasing cooperative which operates
exclusively for its members in negotiating agreements for the purchase and
distribution of products and equipment to franchisees in the SUBWAY® system;
and



     WHEREAS,
Supplier is a manufacturer, distributor, Supplier or other supplier who produces
or offers to provide goods and/or services to franchisees in the
SUBWAY® system or to other parties in the chain of distribution
of Equipment to SUBWAY® franchisees, or to DAI or its affiliates;
and



     WHEREAS,
Supplier wishes to be named as an approved supplier of the Equipment set forth
in Exhibit “A” attached hereto to SUBWAY® restaurants
located worldwide and Supplier wishes to be named as the sole approved supplier
of the Equipment as further delineated below; and



     NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and the mutual promises contained herein the
parties agree as follows:



     1.
DAI hereby approves Supplier to sell the Equipment set forth in Exhibit A which
includes Supplier’s specifications for the Equipment,
(“Equipment”) to SUBWAY® franchisees or
SUBWAY® authorized distributors in the United States and its
territories and to the SUBWAY® franchisees or
SUBWAY® authorized distributors of its affiliates in Canada and
the rest of the world (“Purchasers”). DAI agrees that the Equipment
offered by Supplier will be the sole approved Equipment in the category of
High-Speed Toasting Oven for a period of two years commencing on the signing of
this Agreement. In is sole discretion, DAI may extend this designation for an
additional one (1) year period in the event that DAI is unable to meet its
rollout plans. For the purposes of this Agreement the term “High Speed
Toasting Oven” shall be an oven in which the actual reduction in cooking
time is greater than two times (2x) the conventional oven cooking time and
excludes ovens that solely employ microwave as the sole source of energy or
standard/conventional ovens used for the production of baked goods or other
baking. Notwithstanding the forgoing, in the event that a Subway®
restaurant can not reasonably accommodate the electrical requirements of the
Equipment, DAI will be permitted to designate an alternative High Speed Toasting
Oven for such locations, provided that Supplier will be given the right of first
refusal to supply such alternative High Speed Toasting Oven provided that
Supplier can meet the performance requirements at a competitive price. Supplier
acknowledges and agrees that in countries with third-line forcing law or similar
laws that DAI’s affiliates will only recommend the Equipment to the
SUBWAY® franchisees.



     2.
The initial term of this Agreement shall be two (2) years and this Agreement
shall automatically renew for successive one (1) year periods unless terminated
sooner by either party. If Supplier is in breach of Supplier’s obligations
under this Agreement, DAI may terminate this Agreement by giving Supplier thirty
(30) days’ written notice. This Agreement shall automatically terminate at
the end of such thirty (30) day period if Supplier fails to cure the breach or
fails to take adequate steps within the thirty (30) days designed to cure the
breach covered by the written notice. Effective upon the expiration or
termination of this Agreement, Supplier shall immediately cease selling the
Equipment to Purchasers. However, any order for Equipment placed by DAI with
Supplier prior to the termination that specifies a delivery date after the
termination shall be filled and the invoice paid for in accordance with
Paragraph 8. of this Agreement unless the default by Supplier was for failure to
fulfill purchase orders placed for the Equipment under Paragraph 8. of this
Agreement. Supplier acknowledges and agrees that time is of the essence in
fulfillment of purchase orders placed under this Agreement. If DAI is in breach
of any of its obligations under this Agreement, Supplier may terminate this
Agreement by giving DAI thirty (30) days’ written notice. This Agreement
shall automatically terminate at the




1











end of such thirty (30) day period if DAI
fails to cure the breach within the thirty (30) days covered by the written
notice.




     3.
So  long as Supplier is DAI’s sole approved supplier of High Speed Toasting  Ovens
and for a period of two (2) years thereafter Supplier agrees that it will  not sell the
Equipment to any person or entity that is a Direct Competitor of  DAI, its affiliates, or
its franchisees. However, if Purchasers do not purchase  a minimum of Twenty Thousand
(20,000) units of Equipment on or prior to March  31, 2005 then this restriction will
expire as of that date. A Direct Competitor  is defined as those restaurant concepts or
companies identified in Exhibit D as  well as any other quick service restaurant that has
at the time of this  Agreement at least fifty (50) separate retail locations primarily
engaged in the  business of marketing, serving, and selling submarine-style sandwiches
which are  marketed, served, or sold in substantially the same manner as the Subway brand
sandwich. Notwithstanding the foregoing, Supplier will be free to sell Equipment  to any
retail establishment that is primarily engaged in the business of, or  primarily known to
be in the business of marketing, serving, selling hamburgers,  chicken, pizzas, coffee,
groceries, pastries and other non-submarine-style  sandwiches which are not marketed,
served, or sold in substantially the same  manner as the Subway brand sandwich, even if
such establishments also offer  submarine-style sandwiches on their menus.



     4.
Supplier agrees at all times to meet DAI’s SUBWAY® Gold  Standard
requirements, which may be updated from time to time, subject to mutual  agreement by the
parties, for the Equipment. A copy of DAI’s current  SUBWAY® Gold
Standard requirement for the Equipment is attached  hereto as Exhibit B. In the event of
a revision to DAI’s  SUBWAY® Gold Standard for the Equipment,
Supplier will comply  with the revised standards within a mutually agreed upon time
period. Equipment  will undergo all required safety tests as prescribed by the
Underwriters  Laboratory and mandated by the Food and Drug Administration. In addition,
each  unit of Equipment shall be checked for functionality and burned-in for
approximately twenty (20) minutes. Subsequent to final testing, Supplier will  perform
functional quality audits on fifteen percent (15%) of the finished  Equipment units and
maintain audit records for five (5) years. For international  locations, Supplier must
resolve all technical and operational issues related to  the Equipment’s operation
and function in such international location prior  to shipping the Equipment to such
international location. Supplier shall adhere  to ISO9002 certification standards with
respect to factory defect rate and  procedures with respect to resolution and timeliness.
If Supplier does not  adhere to such standards and has a factory defect rate of more than
two percent  (2%) in any country, DAI or its affiliate may approve another supplier of
Equipment to such country. Concerning the portion of the Gold Standard  requirement
relating to Browning and Cheese Melt, DAI will provide objective  standards as to color
and appearance with the intent that the Equipment perform  as it did during DAI’s
testing phase.



     5.
In the event that Equipment is to carry a trademark owned by DAI then DAI agrees
to permit Supplier to use, on a non-exclusive basis, such of the marks owned by
DAI as may be appropriate for or relate to solely to those approved Equipment
listed on Exhibit A. The marks include, but are not limited to the following
marks registered to DAI in the United States and in other countries: SUBWAY and
the SUBWAY logo, (the “Marks”). The permission granted to Supplier is
for the limited purpose of promoting, advertising, selling, packaging and
providing the goods and/or services offered by Supplier; providing that such use
is in strict accordance with DAI’s policies. Subject to DAI’s
policies, DAI authorizes Supplier to import goods bearing DAI’s marks in
accordance with U.S. Customs Regulation 133.21. Supplier shall use the Marks
only in a manner which shall maintain and enhance the goodwill associated with
the mark. Supplier shall not use any of the Marks in a manner which degrades,
diminishes, or detracts from the goodwill of the business associated with the
Marks nor shall Supplier use the mark in a manner which is scandalous, immoral,
or satirical. Supplier hereby agrees to promptly change the manner of such use
if requested to do so by DAI. Any rights or purported rights in any of the Marks
acquired through Supplier’s use belong solely to DAI. All rights to use the
Marks shall cease upon the expiration or termination of this Agreement, at which
time Supplier shall immediately discontinue its use of the Marks, and Supplier
shall thereafter not use any marks or names which are, or any part of which are,
confusingly similar thereto.



Permission
to print the mark “SUBWAY” or any other mark owned by DAI (or licensed
to DAI by a third party) is only as stated above. Nothing in this Agreement
shall grant Supplier any right, title or interest in the word “SUBWAY”
(either alone or in association with other words or names) or in the corporate
name Doctor’s Associates Inc. or any part thereof or in any other mark
adopted by DAI or any copyright or good will of DAI. Further, no permission or
right is given under this Agreement to Supplier to use any DAI owned mark in
connection with the corporate firm trade name or trade style of Supplier.
Supplier further agrees not to contest or dispute, directly or indirectly,
DAI’s proprietary interest in or ownership of the mark “SUBWAY”
or any marks owned or used by DAI.



2













DAI
and IPC acknowledge and agree that all right, title and interest in and to all
trade names, trademarks, symbols, logos and other names and marks owned or used
by Supplier, including without limitation “Tornado” but excluding
“High Speed Toasting Oven” (the “Supplier Marks”), and the
goodwill pertaining thereto, shall be and remain the sole and exclusive property
of Supplier. DAI and IPC acknowledge and agree that none of them are acquiring
any right or license to use any of the Supplier Marks under or by performance of
this Agreement. DAI and IPC further agree that they will not apply to register
any Supplier Mark, or any other name, mark, designation, logo, device or design
confusingly similar to any Supplier Mark, or challenge the validity of
Supplier’s ownership of any Supplier Mark. DAI agrees that Supplier may
attach Supplier’s marks and name plate visibly on the Equipment.



     6.
Supplier and Equipment, as applicable, must comply, at a minimum, with all
applicable legal requirements of the country in which the Equipment is
manufactured and the legal requirements of the country in which the Equipment is
to be installed. Where applicable laws conflict, the legal requirements of the
country in which the Equipment is to be installed will prevail otherwise the
higher standard shall prevail.



     7.
Supplier shall provide all Purchasers with a copy of its written policy
concerning service and warranty of the Equipment a copy of the Service &
Warranty Policy is incorporated into this Agreement and attached hereto as
Exhibit E. Supplier may not make changes to the Service & Warranty Policy
without the prior written approval of the Director of the Construction
Department of DAI. * * *1 Except as expressly provided in this
paragraph and Exhibit E, Supplier makes no representations or warranties
regarding the Equipment of any kind, nature or description, express or implied.



     8.
The price per unit of Equipment for the initial twenty thousand (20,000) units
delivered under this Agreement shall be * * *2; provided Supplier has
binding orders totaling twenty thousand units no later than March 31, 2005.
Otherwise, prices for the Equipment shall be as negotiated by IPC with Supplier.
The Equipment shall be delivered FOB Supplier’s designated assembly plant
in the United States for Purchasers in the United States, its territories, and
Canada. Supplier shall be responsible to arrange for the shipment of Equipment
purchased hereunder and insurance thereon. Any arrangements made and expenses
incurred by Supplier for shipment of or insurance on the Equipment, including
brokerage fees for shipments to Canada or other international destinations,
shall be for the account of Purchaser, shall be invoiced to DAI for the account
of Purchaser and shall be due and payable together with the purchase price for
the Equipment. DAI must place irrevocable purchase orders for shipments
commencing in August 2004 at least sixty (60) days prior to any month’s
production based on the planned Rollout Schedule attached hereto as Exhibit C.
DAI may increase the purchase orders for a given month up to 10% from amounts
indicated in the Rollout Schedule provided it does so by the 15th day
of the month in which the purchase order was issued. DAI will place the order
with the Supplier and the Supplier shall provide DAI will documentation of each
shipment of Equipment within two (2) business days after the shipment. Supplier
shall include with the shipment of the Equipment to Purchaser instructions for
the Purchaser to inspect and test the Equipment after delivery and notify
Supplier in writing of any discrepancy or damage to permit Supplier to timely
file any report or claim against the shipper and preserve any rights against the
shipper under law or contract. Supplier shall invoice DAI upon shipment of the
Equipment, and DAI shall pay the full invoice amount within ten (10) days from
the date of invoice. The purchase price for the Equipment does not include
freight, insurance and other costs for shipping the units to the locations
designated by Purchaser, which shall be for the account of DAI as set forth
above. In addition, the purchase price does not include any applicable sales,
duty, export, use, excise, ad valorem, goods and services or other similar taxes
imposed by any taxing authority and any brokerage fees and costs associated with
international shipments. All such taxes and brokerage costs, if applicable and
if paid by Supplier, will be added to Supplier’s invoices as separate
charges for the account of DAI. DAI shall not be responsible for any order of
Equipment placed directly with Supplier by any Purchaser.



     9.
a. Supplier shall indemnify and defend and save harmless DAI, its affiliates,
its franchisees, and the shareholders, directors, officers, agents,
representatives and employees of DAI, and its affiliates, and IPC, and
IPC’s members, directors, officers, agents, representatives and employees,
against and from any claims, suits, judgments, losses, damages and costs,
including attorneys’ fees, arising out of or resulting from the goods
and/or services produced or sold by Supplier, including but not limited to any
breach of warranty or Equipment liability claims, which indemnification shall
not be relieved by any insurance carried by Supplier. The foregoing
indemnification shall not include infringement actions arising out of or
resulting from Supplier’s use of the Marks, provided that Supplier’s
use of the Marks was in accordance with this Agreement and DAI’s policies,
as provided to Supplier in writing by DAI.



__________ 



	1	 Confidential
material redacted and filed separately with the Commission.







	2	 Confidential
material redacted and filed separately with the Commission.








3











          b.
Supplier must immediately notify DAI of any infringement of or challenge to
Supplier’s use of any of the Marks, or any claim by any person of any
rights in any of DAI’s Marks. DAI will indemnify Supplier for all damages
for which Supplier is held liable in any proceeding arising out of the use of
any of DAI’s Marks in compliance with this Agreement and DAI’s
policies, as provided to Supplier in writing by DAI, provided that Supplier
notifies DAI promptly, cooperates in the defense of the claim and allows DAI to
control the defense of the action. If any of DAI’s Marks are challenged by
third parties claiming infringement of alleged prior or superior rights in such
mark, DAI shall have the option and right, without any obligation or liability
to Supplier, to modify or discontinue use of the Mark and adopt substitute marks
in such geographical areas as DAI chooses.



     10.
a. Supplier agrees to comply with DAI’s Supplier Code of Conduct for
Manufacturing as it may be amended from time to time (the “Code”)
which is attached hereto as Exhibit F and incorporated into this Agreement.
Supplier agrees that any failure to comply with the Code will be a breach
subject to Paragraph 2. of this Agreement.



          b.
Supplier agrees that any Equipment bearing DAI’s marks, whether first
quality or seconds, shall not be sold or distributed in any outlets or through
any discounter whether in the United States or any foreign market. Supplier
agrees to only sell Equipment bearing DAI’s marks through DAI approved
distributors.



     11.
a. Supplier agrees that Supplier shall treat and maintain all confidential and
proprietary information of DAI, (“DAI Proprietary Information”) as
confidential, and shall not, at any time, without the express written consent of
DAI, disclose, publish, or divulge DAI Proprietary Information to any person,
firm, corporation or other entity, or use DAI Proprietary Information, directly
or indirectly, for Supplier’s own benefit or the benefit of any person,
firm, corporation or other entity, other than for the benefit of DAI or its
affiliates. DAI Proprietary Information includes, but is not limited to customer
lists, lists of suppliers, products, recipes, formulas, specifications, food
preparation procedures, devices, techniques, plans, business methods and
strategies, organizational structure, financial information, marketing and
development plans and strategies, advertising programs, creative materials,
media schedules, business forms, drawings, blueprints, reproductions, data,
Franchise Agreements, franchisee lists (including names, addresses and telephone
numbers), business information related to franchisees, pricing policies,
trademarks, and variations thereof, documents, letters or other paper work,
trade secrets and know-how, including similar information pertaining to
DAI’s affiliates.



Supplier
acknowledges and agrees that DAI Proprietary Information was developed and
designed by DAI at great expense and over lengthy periods of time, is secret,
confidential and unique, and constitutes the exclusive property and trade
secrets of DAI.



DAI
Proprietary Information shall not include, and the foregoing restrictions shall
not apply to, any information or material (a) which becomes generally known to
the public other than as a result of a disclosure by Supplier or Supplier’s
representative; or (b) which was known to Supplier and reduced to written form
in documents which were in Supplier’s possession at the time such
information was disclosed to Supplier, provided that the source of such
information or materials was not known by Supplier to be bound by a
nondisclosure agreement with other contractual, legal or fiduciary obligations
of confidentiality to DAI or any other party with respect to such information or
materials; or (c) becomes available to Supplier on a non-confidential basis from
a source other than DAI, or DAI’s affiliates, provided that such source is
not bound by a nondisclosure agreement with other contractual, legal or
fiduciary obligations of confidentiality to DAI, such affiliate or any other
party with respect to DAI Proprietary Information.



In the
event that Supplier is requested or required (by oral questions,
interrogatories, requests for information or documents in legal proceedings,
subpoena, civil investigative demand or similar process) to disclose any part of
DAI Proprietary Information, Supplier shall provide DAI with prompt written
notice of any such request or requirement so that DAI may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Agreement. If in the absence of a protective order or other remedy or
receipt of waiver by DAI, Supplier is nonetheless in the opinion of its legal
counsel, legally compelled to disclose DAI Proprietary Information to any
tribunal or else stand liable for contempt or suffer other censure or penalty,
Supplier may, without liability hereunder, disclose to such tribunal only that
portion of DAI Proprietary Information which such counsel advises Supplier is
legally required to be disclosed.



4













Because
of the unique nature of the DAI Proprietary Information, Supplier further
acknowledges and agrees that any disclosure or use of DAI Proprietary
Information by Supplier other than for the sole benefit of DAI and its franchise
system in violation of Supplier’s obligations under this Agreement, would
be wrongful, would cause irreparable injury to DAI and that monetary damages
would be inadequate to compensate DAI for such breach. Accordingly, Supplier
hereby acknowledges and agrees that in the event of any violation hereof,
notwithstanding the provisions of Paragraph 17, DAI shall be authorized and
entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief. DAI may also proceed under Paragraph 17 to obtain
an equitable accounting of all profits or benefits arising out of such
violation, which rights and remedies shall be cumulative and in addition to any
other rights or remedies to which DAI may be entitled.



Supplier
agrees that it shall not disclose DAI Proprietary Information to any other
directors, officers, agents, and employees of Supplier except those who need
such DAI Proprietary Information and shall only reveal or transmit DAI
Proprietary Information to such persons only after advising them that DAI
Proprietary Information has been made available to Supplier subject to this
Agreement and such persons agree to be bound by the confidentiality provisions
of this Agreement.



          b.
For purposes of this Agreement, the term “Product Information” means
the Supplier’s designs, technical information, know how, data,
specifications and other proprietary information (including, without limitation,
any designs, technical information, know how, etc. disclosed to DAI or IPC prior
to the date of this Agreement), whether patented or patentable or not, relating
to the design, manufacture, assembly, use or sale of the High Speed Toaster
Oven, including, without limitation, any inventions, new developments,
enhancements or improvements (including, without limitation, know how) used or
usable to improve the Equipment developed by or on behalf of Supplier or by DAI
or IPC during the term of this Agreement. DAI’s Gold Standard
Specifications shall not be considered to be Product Information.



However,
that recipe programming developed for the Subway application of the Equipment,
the design and layout of the control panel for the Equipment for DAI and
operating manuals and other documentation developed jointly by Supplier and DAI
(“Subway Product Information”) shall be jointly owned by Supplier and
DAI.



DAI
and IPC acknowledge and agree that any technical, business or other information
disclosed to either of them hereunder (including such information disclosed to
either of them prior to the date of this Agreement) which derives value,
economic or otherwise, from not being generally known to the public or other
persons who can obtain value from its disclosure or use, including all Product
Information (but not including Subway Product Information), the terms and
conditions of this Agreement, all records and information relating to the
Product Information (other than Subway Product Information), all inventions, new
developments or improvements regarding the Product Information that are
developed hereafter by or on behalf of Supplier or by DAI or IPC during the term
hereof, are proprietary information of Supplier (“Supplier Proprietary
Information”). All Supplier Proprietary Information, except as set forth
below, is secret and confidential. DAI and IPC agree (i) to maintain such
Supplier Proprietary Information in strict confidence and secrecy, (ii) not to
use the Supplier Proprietary Information except to perform their respective
obligations hereunder, and (iii) to disclose such Supplier Proprietary
Information only to those of its employees who have a strict need to know such
Supplier Proprietary Information or any part thereof in order for DAI or IPC to
perform their respective obligations under this Agreement. DAI and IPC further
agree to take all appropriate actions, including the filing and prosecution of
legal and equitable proceedings, to prevent unauthorized disclosures and uses of
Supplier Proprietary Information. The following information is excepted from the
requirements of strict confidence, secrecy and non-use provided in this section:
a. any information that was known to DAI or IPC prior to the disclosure to it of
any portion of the Supplier Proprietary Information, as evidenced by their prior
existing records; b. any information that was in the public domain prior to the
disclosure of any portion of the Supplier Proprietary Information to DAI or IPC,
as evidenced by documents that were generally published prior to such
disclosure; c. any information that comes into the public domain, as evidenced
by documents that are generally published, through no fault of DAI or IPC or any
of their respective officers, directors, employees, franchisees or agents; d.
any information that is disclosed to DAI or IPC without restriction by a third
party who has a legal right to make such disclosure; or e. beginning three years
after expiration or termination of this Agreement, any information that does not
constitute a trade secret under applicable law.



If DAI
or IPC consider any portion of the Supplier Proprietary Information to be
excepted from the requirements of strict confidence, secrecy and non-use set
forth in this section, DAI or IPC shall reduce that specific portion of the
Supplier Proprietary Information to writing and state in detail their reasons
for considering such portion of the Supplier Proprietary Information to be
excepted from such requirements, citing and specifically referring to the
documents or circumstances on which they are relying in reaching their




5















conclusion. Such writing shall be forwarded to Supplier, along with copies of
all cited documents or other evidence of such circumstances and a notice that
DAI and IPC intend to treat the identified portion of the Supplier Proprietary
Information as being excepted from the requirements of strict secrecy,
confidence and non-use set forth in this section, at least 30 days prior to so
treating that portion of the Supplier Proprietary Information.






Upon
the expiration or termination of this Agreement for any reason whatsoever or at
any time upon Supplier’s request, DAI and IPC shall, at their expense,
promptly return to Supplier all Supplier Proprietary Information in tangible
form.



Because
of the unique nature of the Supplier Proprietary Information, DAI and IPC
further acknowledge and agree that any disclosure or use of such Supplier
Proprietary Information by DAI or IPC, other than for the sole benefit of
Supplier, in violation of DAI’s or IPC’s obligations under this
Agreement would be wrongful, would cause irreparable injury to Supplier and that
monetary damages would be inadequate to compensate Supplier for such breach.
Accordingly, DAI and IPC hereby acknowledge and agree that in the event of any
violation hereof, notwithstanding the provisions of Paragraph 17, Supplier shall
be authorized and entitled to obtain from any court of competent jurisdiction
preliminary and permanent injunctive relief. Supplier may also proceed under
Section 17 to obtain an equitable accounting of all profits or benefits arising
out of such violation, which rights and remedies shall be cumulative and in
addition to any other rights or remedies to which Supplier may be entitled.



DAI
and IPC acknowledge that Supplier has filed or intends to file patent
applications involving the Equipment. DAI and IPC acknowledge and agree that
Supplier is and shall remain the sole and exclusive owner of all patent rights
in and to the Equipment. DAI and IPC shall not apply for any patents relating to
High Speed Toasting Ovens, nor oppose any patent applications filed by or on
behalf of Supplier in connection with High Speed Toasting Ovens.



     12.
Supplier shall not sell any unapproved Equipment to the Purchasers.



     13. Suppler
must for a period of two (2) years from the date of shipment keep complete
records of the manufacture, storage, shipment, and sale of the Equipment, as
well as all correspondence and other related records, and upon request by DAI
and/or Purchasers make these records available to DAI and/or Purchasers. In
addition, Supplier shall permit DAI, upon three (3) days notice to Supplier, to
audit Supplier’s correspondence, records, and books related to Equipment
sold to Purchasers during reasonable business hours.



     14.
Upon request of DAI and/or IPC, Supplier shall provide to DAI and/or IPC
financial information sufficient to demonstrate Supplier’s financial
condition. Such information may include annual or quarterly reports, bank
references, or other information reasonably requested by DAI and/or IPC. Such
financial information shall be considered Supplier Proprietary Information under
Paragraph 11.b. of this Agreement. Supplier authorizes DAI and/or IPC to perform
a credit and security check of Supplier’s finances and background.



     15.
In the event of any recall of Equipment, Supplier shall follow the procedure set
forth in Exhibit G which is hereby incorporated into this Agreement. Supplier
agrees that all expenses of any recall of Equipment shall be at the sole expense
of Supplier.



     16.
Supplier agrees to carry insurance coverage and indemnification as follows:
Insurance shall include, but not be limited to, comprehensive liability
insurance including Equipment liability coverage and fire damage coverage in the
minimum amount of $5,000,000.00 per occurrence, coverage shall include but not
be limited to Equipment recalls and resupply of Equipment. Supplier shall carry
Worker’s Compensation Insurance as required by applicable law. Supplier
shall keep these policies in force for the mutual benefit of the parties and
shall name DAI, its affiliates, shareholders, directors, officers, agents,
representatives and employees and the directors, officers, agents,
representatives and employees of its affiliates, Purchasers, and IPC, and
IPC’s members, directors, officers, agents, representatives and employees
as additional insureds, with such coverage being primary coverage. The insurance
coverage required shall be provided by an insurance company with a rating of at
least “A10” in Bests’ Insurance Guide and Supplier shall provide
DAI with certificates of insurance evidencing such coverage and each certificate
shall indicate that the coverage shall not be cancelled or modified unless
thirty days prior written notice has been given to DAI. Supplier agrees to
indemnify and defend and hold harmless DAI, its affiliates, shareholders,
directors, officers, agents, representatives and employees and the directors,
officers, agents, representatives and employees of its affiliates, the
Purchasers, IPC, and IPC’s members, directors, officers, agents,
representatives and employees from any claims, suits,




6
















judgement, losses, damages
and costs, including attorney’s fees, arising out of or resulting from the
Equipment provided by Supplier, including but not limited to any breach or
warranty or Equipment liability claims, which indemnification shall not be
relieved by any insurance carried by Supplier.





     17.
Any controversy or claim arising out of or relating to this Agreement or the
breach thereof shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association at a
hearing to be held in Bridgeport, Connecticut, or such other location in the
State of Connecticut designated by the American Arbitration Association, and
judgement upon an award rendered by the Arbitrator(s) may be entered in any
court having jurisdiction thereof. The commencement of arbitration proceedings
by an aggrieved party to settle disputes arising out of or relating to this
Agreement is a condition precedent to the commencement of legal action by either
party. Each party will be responsible for their own costs in conjunction with
the arbitration action. If either party commences action in any court prior to
an arbitrator’s final decision on the controversy or claim, then the party
so commencing the action shall be responsible for all expenses incurred by the
parties in the arbitration and the court proceedings whether or not they are the
prevailing party.



     18.
Neither party shall make a claim against the other in any arbitration or court
proceeding for lost profits or consequential or punitive damages, except that
this provision shall not act to limit any claim for indemnification under
Paragraph 16 of this Agreement with respect to third party claims.



     19.
For the purposes of this Agreement and all services to be provided hereunder,
the parties shall be, and shall be deemed to be, independent contractors and not
agents or employees of the other party. The parties do not have and are not to
be deemed to have the relationship of principal/agent, joint venture or
partnership. Neither party shall have authority to make any statements,
representations or commitments of any kind, or to take any action which shall be
binding on the other party, except as may be expressly provided for herein or
authorized in writing. Nothing herein shall be deemed to constitute a party the
agent or legal representative of another party, nor to constitute the parties as
joint venturers, and no party has granted another the right to bind it in any
manner or thing whatsoever.



     20.
All notices required under this Agreement shall be sent in writing by a delivery
or courier service which uses a tracking system that provides evidence of the
date the notice is received, such as DHL Worldwide Express or Federal Express
and the notice shall be deemed effective when delivered or when delivery was
refused.



	 	Notices
to DAI shall be sent to:







	 	Doctor’s
Associates Inc.
325 Bic Drive  
Milford, CT 06460  
ATTN:  Legal Dept.







	 	Notices
to  Supplier shall be sent to:







	 	Turbochef
Technologies, Inc.
Attn: CEO
10500 Metric Drive
Suite 128  
Dallas, Texas 75243







	 	Notices
to IPC shall be sent to:







	 	Independent
Purchasing Cooperative, Inc. 
9200 South Dadeland Boulevard
Suite
#705 
Miami, Florida 33156 
ATTN: VP Purchasing







     21.
Supplier shall not pay any gratuities, commissions, fees, or grant any rebates
to Purchasers or any employee or officer of DAI for personal or private benefit,
nor favor Purchasers or any employee or officer of DAI with gifts, travel,
entertainment in an amount greater than twenty five dollars ($25.00), nor enter
into any business arrangements with any employee or officer of DAI. This
provision shall also be applicable to any



7












third party inspection or testing firm
and Supplier agrees that these restrictions shall also apply to the officers and
employees of such firms. Nothing in this provision shall prevent Supplier from
covering expenses incurred by DAI for research and development and travel by its
personnel on corporate business in connection with this agreement. This
provision shall not prevent Supplier from paying a fee or other compensation to
IPC pursuant to any agreement between the Supplier and IPC.




     22.
Supplier is obligated to provide equitable treatment to all Purchasers. In  connection
with the sale of Equipment, Supplier shall not pay or authorize any  third party to pay
any direct or indirect Equipment or cash allowances rebates,  brokerage fees, finders
fees, commissions, or any other consideration of any  sort.



     23.
Neither party shall be liable for damages for any delay or default in performing
hereunder if such delay or default is caused by conditions beyond its control
including, but not limited to Acts of God, Government restrictions (including
the denial or cancellation of any export or other necessary license), wars,
insurrections and/or any other cause beyond the reasonable control of the party
whose performance is affected. However, in the event that Supplier is unable to
fulfill purchase orders within thirty (30) days following the ship date listed
on the purchase order due to such delay, DAI may approve another supplier of the
Equipment to its franchisees.



     24.
Upon the request of DAI, Supplier shall promptly return any written confidential
or proprietary information, including all reproductions or copies thereof.



     25.
This Agreement may not be assigned by Supplier without the prior written consent
of DAI.



     26.
If any paragraph, portion thereof, or part of this Agreement is invalid, it
shall not affect the remainder of this Agreement, but shall be severable, and
the remainder shall be binding and effective.



     27.
This Agreement sets forth the entire understanding of the parties with respect
to the subject matter of this Agreement and supersedes all prior agreements and
understandings between them. This Agreement may not be modified or amended
except in a writing signed by both parties.



     28.
The provisions of this Agreement which by their terms or by implication are to
have continuing effect after the termination or expiration of this Agreement
shall survive the termination of this Agreement, including but not limited to
the Paragraphs 3, 5, 9, 11, 16, 17, 18, and this Paragraph 28. The obligations
of nondisclosure and confidentiality under Paragraph 11 of this Agreement shall
continue for a period of five (5) years from the date of termination or
expiration of this Agreement.



     29.
Supplier agrees not to use any personal information obtained from DAI concerning
any SUBWAY® franchisee for any purpose other than the fulfillment
of the contractual relationship including the sale or distribution of any
personal information to a third party.



     30.
This Agreement shall be governed and construed under the laws of the State of
Connecticut without reference to its provisions as to conflicts of laws.



     IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date written above.


	DOCTOR’S ASSOCIATES INC	SUPPLIER: Turbochef Technologies, Inc.
	 	 
	By: /s/ Leonard Axelrod	By: /s/ Richard Perlman
	       Its Duly Authorized representative	       Its Chairman
	 	 
	Date: 3/5/04	Date: 3/5/04





INDEPENDENT
PURCHASING COOPERATIVE, INC.
 
By: /s/ Dennis Clabby
       Its Vice President of
Purchasing
 
Date: 3/5/04




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